Clean up your Act

In a High Country News story that ran last August, Pat Parenteau, a legal expert in watersheds and wetlands at the Vermont Law School said, "Sooner or later the Obama administration has got to come in and ask, 'What the hell are we going to do with the Clean Water Act?' Because right now, water law is a total mess."

Guess it's turned out to be sooner. On April 27, President Obama and the White House Council on Environmental Quality announced their plans and efforts (pdf) to clean up streams, rivers, bays and their tributaries. Part of the strategy is defining exactly what "water" means under the CWA, an issue that's long been a source of profound confusion. For an overview of the confusion (and some good reading), check out HCN's 2009 feature, "Non-navigable River Blues." As the story explains, in order to dredge, fill, or pollute navigable waters, you have to get one of a selection of permits. Unfortunately, no one, not even Supreme Court justices, can agree on what constitutes "navigable water."

The new 39-page definition (pdf), meant to guide agency folks who are trying to figure out which creeks, swamps and trickles fall under the CWA and which don't, lays out in detail exactly what counts as "water." For example, it clarifies that wetlands alongside tributaries to bigger waterways are protected by the act while "artificially irrigated areas that would revert to upland should irrigation cease" are not. "Without this protection, each single tributary or wetland might be degraded or polluted," blogged the National Sustainable Agriculture Coalition. "Over time the entire watershed, including the navigable waters, could suffer harm."

Responses have been divided. Environmental groups are celebrating. American Rivers points out the guidance closes "loopholes for polluters," referring to a 2006 Supreme Court decision that let a developer fill a wetland to build a shopping mall. The Theodore Roosevelt Conservation Partnership, meanwhile, reassures its members that this "moderate approach" will protect fresh water while exempting "a wide range of farming and forestry activities, including plowing, cultivating and seeding and the construction and maintenance of stock ponds and logging roads" from coverage under the CWA.

But the American Farm Bureau is not convinced, claiming the announcement is "a road map for EPA and the Corps to designate nearly all water bodies, and even some dry land, as subject to federal regulations that dictate land-use decisions. If unchecked, the guidance would lead to more Clean Water Act permitting requirements, more litigation and less economic growth at a time when our nation needs it most." Meanwhile, in true GOP spirit, Representative Bob Gibbs, R-Ohio, led 170 fellow Congressional leaders in signing a letter (pdf) to the EPA protesting that the new approach "would substantially change the Agencies' policy" and therefore should go through a more thorough rule-making process with oversight from Congress.

More from Water

The controversy isn't over what is a navigable water, but rather what is a water of the United States and under federal jurisdiction. For example, the Great Salt Lake is entirely within Utah and feeds no cross border streams. It may still fall under federal law however, because people from other states recreate in it and shrimp caught in it are sold across state and country boundaries. But what about the Humboldt River in Nevada?